Resultados de la Investigación 1 Análisis de los resultados

When it comes to the exceptions to joint and several liability, national reports generally state that domestic rules have been harmonized accordingly. We are forced to note that the 11 national reports do not discuss the rules on joint and several liability with the same level of detail (some national reports contain only one page on the problem of the joint and several liability and the exceptions to joint and several liability). As a consequence, it may not be excluded with certainty that there are discrepancies between the Directive and the provisions of national laws concerning immunity recipients.

During the examination, we separate the position of immunity recipients and the injured parties, on the one hand, and the position of immunity recipients and other co-infringers, on the other hand.

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1. Relationship of the immunity recipient and the injured parties

CEE countries implemented (plan to implement) the rules of the Damages Directive regarding the varying level of liability of immunity recipients, which differs depending on who the injured party is. Immunity recipients are jointly and severally liable with other co-infringers for the harm suffered by their own direct and indirect purchasers and providers. Immunity recipients are in a better position regarding harm suffered by injured entities that are not their own direct and indirect purchasers and providers, because these harms shall only be compensated by an immunity recipient in the event that such injured parties have not received sufficient compensation from other co-infringers.

After the adoption of the Damages Directive, the majority of CCE countries transposed these provisions as new rules. However, Hungary and Slovakia had introduced an exception regarding immunity recipients into their national laws earlier in light of the White Paper (Miskolczi Bodnár, 2017, p. 129 and Blažo, 2017, p. 253). These rules were more beneficial to the immunity recipients than the relevant norms of the Damages Directive. These rules were applicable for a relatively short period of time only in these two countries. Norms on legal position of the immunity recipients were adjusted to the norms of the Damages Directive in December 2016.

Only the Romanian national report informs us that immunity recipients shall not bear joint and several liability, but only joint liability towards their own direct and indirect purchasers (Mircea, 2017, p. 240). The Romanian national report does not mention injured ‘providers’; in the Damages Directive, the rules on liability towards providers are the same as on harm caused to own direct and indirect purchasers of the immunity recipient.

2. Relationship of th e immunity recipient and other co-infringers

In light of those national reports that also considered this question,13 _the legislation of CEE countries transposed the rule of the Damages Directive regarding claims for the payment of a contribution to damages already covered submitted by the co-infringer that had actually compensated the harm.

We highlight three of the issues related to claims for the payment of a contribution towards damages already covered.

JOINT AND SEVERAL LIABILITY OF COMPETITION LAW INFRINGERS… 101 2.1. Starting date of the payment obligation of the immunity recipient

The national report of Croatia points out that the starting date of the payment obligation of the immunity recipients is not clarified in the Damages Directive. ‘It is very unclear what is the determining moment when the claim against other co-infringers shall be deemed unsuccessful, consequentially triggering the right of such victims to request compensation from the immunity recipient.’ (Butorac Malnar, 2017, p. 65).

According to the Croatian national report, the date when the decision is taken on the irrecoverable nature of compensation from other co-infringers may be considered as the date when the position of the immunity recipient changes. Nevertheless, the date when pubic enforcement proceedings are to be considered finally unsuccessful is uncertain. This uncertainty jeopardizes the full compensation of injured parties (Butorac Malnar, 2017, p. 65).

Issues connected to the claim for contribution.

2.2. Factors determin ing the internal share of the responsibility among co-infringers Some of the national rapporteurs expressed their disappointment about the shortcomings of the legislation.

The national report from Latvia14 _{wished for more precise guidance} concerning the share of responsibility among the persons liable jointly and severally (Jerneva and Druviete, 2017, p. 162). The Latvian national report noted that it would be necessary to settle this issue before concrete legal disputes ensue, facilitating the work of the parties and the court.

The Croatian draft legislation indicates some factors to be taken into account during the determination of internal responsibility allocations (like the circumstances of the case, the market share, the turnover and the role in the competition infringements of the infringers, regardless of whose purchaser or provider the injured party is). This list partially follows the rules detailed in recital 37 of the Damages Directive (Butorac Malnar, 2017, p. 65).

In the other group of CEE countries, national reports did not raise any complaints about shortcomings regarding rules on joint and several liability, presumably because their civil law norms regulate this question and the respective Member States found these general rules appropriate also for harm caused jointly by multiple competition law infringements.

14 _{It remains to be seen how the identification of the relative share of responsibility will}

take place in practice. The Amendments are silent on this matter, while it would be practical to try to resolve these issues beforehand and include, for example, a rebuttable presumption of equal share of liability, or give general guidelines which would assist the parties to the dispute as well as the judge.

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The Estonian act on contract law prescribes the taking into account of all essential circumstances for each person (including, but not limited to, the gravity of non-performance, the unlawful nature of the conduct and the degree of arising risk) during the determination of the share of co-infringers. The Estonian national report does not refer to the fact that the authors of the report considered the supplementing necessary in case of harms jointly caused by competition law infringements (Pärn-Lee, 2017, p. 113).

The Hungarian national report cites the rules set out in the Civil Code15 as well, and assumes that those circumstances govern the relationship of co-infringers in the case of harm caused by competition infringement as well (Miskolczi Bodnár, 2017, p. 129).

2.3. Maximum degree of lia bility of the immunity recipient

The Croatian and the Latvian national reports (Butorac Malnar, 2017, p. 65 and Jerneva and Druviete, 2017, p. 162) point out that based on the Damages Directive, the maximum degree of the liability of an immunity recipient is different, depending on whether the injured party is

(1) a person, who is not ‘own direct or indirect purchaser or provider of the immunity recipient’, but the direct or indirect purchaser or provider of any of the other co-infringers, as well as,

(2) a person, who is not in a relationship as ‘own direct or indirect purchaser or provider’ with either the immunity recipient or any of the co-infringers (so-called umbrella customer or competitor).

The maximum degree of liability set out in Article 11(5) of the Damages Directive governs the first case; in the second case however, the liability of the immunity recipient adjusts to the share of liability without a special maximum limit.